Workplace Class Action Blog

Iowa State Court Rejects Theory Of Unconscious Bias And Disparate Impact Class Claims In Bellwether Ruling

Posted in Class Certification

iowa-flag.jpgBy David Kadue, Gerald L. Maatman, Jr., Jennifer Riley, and David Ross

When one thinks of the judicial venues responsible for leading class action rulings, the District Court of Polk County, Iowa, does not immediately come to mind. Judge Robert Blink’s opinion of April 17, 2012, however, has put Polk County on the class action map. His ruling, coming after a three-week class action trial in Pippen v. Iowa, No. LACL107038 (Dist. Ct. Polk County Apr. 17, 2012), is a stunner.

Judge Blink entered judgment for Defendants and against a class of African-American employees who claimed class-wide bias in hiring and promotion within 37 departments of the executive branch of the State of Iowa. Judge Blink found that Plaintiffs failed to show that the departments’ subjective, discretionary decision-making caused disparate impact or adverse impact discrimination. Although Judge Blink’s decision is not binding on other courts, we predict that employers will cite it repeatedly, for its thorough and thoughtful analysis and rejection of class action discrimination theories that have been — and continue to be — raised by plaintiffs’ attorneys across the country.

Factual Background In The Pippen Litigation

Plaintiffs, a group of African-Americans who sought employment or promotion in positions with the State of Iowa, sued all 37 executive branch departments, claiming disparate impact and disparate treatment discrimination. Plaintiffs claimed in particular that the State permitted subjective, discretionary decision-making that had a disparate impact on class members in violation of Title VII and the Iowa Civil Rights Act.

The 37 departments of the State of Iowa’s executive branch vary in size, mission, and funding source. The State’s equal-opportunity merit system requires that all appointments and promotions to positions be made solely on the basis of merit and fitness, to be ascertained by examinations or other appropriate screening methods. The Department of Administrative Services (DAS) is responsible for ensuring that the departments make hiring decisions in accordance with the merit system. After each job posting closes, DAS reviews the applications and identifies those who meet the minimum qualifications of the job classification and sends the list to the hiring department. The departments use different practices to further screen applicants and decide which candidates to interview and hire.

In earlier proceedings, the Court had granted certification of the claims of African-American applicants and employees for purposes of adjudicating Plaintiffs’ disparate impact class claim. Judge Blink severed all non-class claims, as well as the disparate treatment claims, from the trial on the class claims. Judge Blink denied the State’s motions for summary judgment, and the disparate impact class claims proceeded to trial on September 12, 2011.

Judge Blink’s Opinion Of April 17

Relying on the Supreme Court’s decision in Wal-Mart v. Dukes, 131 S. Ct. 2541 (2011), Judge Blink noted that, to establish a disparate impact claim, Plaintiffs had to identify a specific employment practice. Judge Blink reasoned that merely identifying a generalized policy allowing broad discretion at lower levels “does not suffice even at the lower threshold of the class certification stage.” Id. at 15 (citing Wal-Mart, 131 S. Ct. at 2555-56.) Judge Blink concluded that Plaintiffs failed to meet their burden. First, Plaintiffs failed to provide legal authority for concluding that “abdication of statutory or regulatory responsibilities and obligations and/or failure to follow its own policies” is a particular employment practice. Id. at 41. Second, Plaintiffs failed to show that the “entire hiring process” consisted of components so indistinguishable or “not capable of separation for analysis” that the process itself could be considered an employment practice. Id. at 46.

Although Judge Blink found “no question” that the components of the State’s merit employment system were “interconnected,” this finding did not mean that the process could not be examined part by part. On the contrary, Plaintiffs’ experts were capable of separating data for the referral stage, the interview stage, and the hiring stage for African-Americans as compared to whites. Id. at 43-44. Further, the evidence showed that DAS had recommended curtailment of particular practices such as a second resume screen and a “spelling and grammar” screen utilized by some departments. Id. at 45 n.26. On this record, Judge Blink reached what he termed the “inescapable conclusion” that one could focus on any number of discrete employment decisions made as individual, separable, identifiable employment practices. Id. at 45-46.

Furthermore, Judge Blink found that even if Plaintiffs had proven an actionable employment practice, they had failed to show causation. Judge Blink noted that Plaintiffs’ burden “goes beyond” merely showing statistical disparities in the employer’s workforce; rather, Plaintiffs had to show that a specific employment practice caused the exclusion of applicants for jobs or promotions because of their membership in a protected group. Id. at 47-48. Judge Blink determined that Plaintiffs’ experts failed to support this conclusion. Dr. Killingsworth, Plaintiffs’ statistical expert, for instance, admitted that his statistical analysis could not identify “causes” of discrimination and that the numerical disparities he found did not link any particular employment practice to different outcomes in the hiring or promotion of African-Americans. Id. at 48-50. Indeed, the evidence showed that, among the different departments, African-Americans had less opportunity for interviews in some, about the same in some, and higher probabilities in others. Judge Blink concluded, “Plaintiffs did not identify why certain agencies had differing outcomes. The causes could be anything as egregious as explicit bias or as benign as extremely specific job requirements.” Id. at 51.

The Implicit Bias Theory

Judge Blink also rejected the centerpiece of Plaintiffs’ class claim — their “implicit bias” theory. Plaintiffs presented testimony from Dr. Anthony Greenwald in support of this theory. Implicit bias, according to Dr. Greenwald, is a person’s “automatic preference for one race over another” that leads the person to unintentionally discriminate. Id. at 28.

Dr. Greenwald is a psychology professor who claims to have invented the famous (some would say infamous) Implicit Association Test (IAT). The IAT is a computerized test that requires a subject to associate a verbal or visual stimulus viewed on a monitor with either “pleasant” or “unpleasant” words and then measures the relative response time to complete the associations. By combining together the results of several disparate IAT tests taken under different conditions with different groups (in a so-called “meta-analysis), Dr. Greenwald has concluded, based on his use of IAT, that 70% of white persons have an automatic preference for whites over blacks. Under his theory, the inherent racial preference demonstrated by the IAT must affect employment decision-making, absent strict bureaucratic supervision and the use of wholly objective standards. Other plaintiffs’ class action lawyers have advanced this theory in nationwide workplace bias class actions, and the media has publicized it widely [here and here].

Judge Blink did not buy this argument. He noted that subjective discretion in decision-making is “not a bad thing”; rather, it is a “presumptively reasonable way of doing business” that “should itself raise no inference of discriminatory conduct.” Id. at 53 (quoting Wal-Mart, 131 S. Ct. at 2554).

Judge Blink also identified significant problems with Dr. Greenwald’s theory. First, as Dr. Greenwald admitted, an IAT-measured racial preference would not necessarily result in prejudicial behavior. Id. at 29. In this case, Dr. Greenwald did not opine that implicit racial bias caused the alleged statistical disparities, and could did not explain how many of the discretionary employment decisions were the result of “stereotyped thinking.” Id. at 53-54. Further, Dr. Greenwald did not administer the IAT to anyone in the State of Iowa. He did not present data for employees working in Iowa or managers for the executive branch and merely assumed that the IAT percentages would be the same for the State. Id. at 54. Finally, Judge Blink observed that, under Dr. Greenwald’s theory, even in the best-case scenario with a screening manual, unconscious bias could still infect the decision-making process. Id. at 30. On this basis, Judge Blink dismissed Dr. Greenwald’s testimony as “worlds away from ‘significant proof.’” Id. at 54.

Implications for Employers

The ruling in Pippen v. Iowa contains a treasure trove of legal analysis and conclusions for employers. This opinion is well worth two cups of coffee during the time you review and analyze its holdings.

Judge Blink engaged in a critical analysis of Plaintiffs’ class theories that should provide a helpful roadmap for employers defending disparate impact claims of the type asserted by the Plaintiffs’ class action bar. Of particular import, Judge Blink saw through the so-called evidence of unconscious bias – a tool frequently used by plaintiffs’ counsel to bolster claims of discrimination and provide the Wal-Mart “glue” to demonstrate commonality in a class action context. Building on Supreme Court precedent from Wal-Mart, Judge Blink’s opinion provides a useful template to attack the use of social science theory as proof of discrimination.

That being said, the last chapter in this litigation has yet to be written. Plaintiffs’ counsel has already announced their intention to appeal Judge Blinks ruling. Stay tuned!